| People v Rebollo |
| 2013 NY Slip Op 04060 [107 AD3d 1059] |
| June 6, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vPandora L. Rebollo, Appellant. |
—[*1] William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Madison County(DiStefano, J.), rendered March 21, 2012, upon a verdict convicting defendant of thecrimes of criminal possession of a forged instrument in the second degree and criminalpossession of stolen property in the fifth degree.
A number of years ago, Carolyn Northup Lioto opened a checking account with KeyBank National Association and, in conjunction therewith, was issued a bank card andchecks. Although Lioto closed the account shortly thereafter, she held onto thechecks—storing them in a box underneath her bed. In fall 2010, defendant, whomLioto had known for 25 years, visited Lioto at her Madison County home. When it cametime for Lioto to step outside to meet her daughter's school bus, defendant indicated thatshe did not feel well and asked to wait inside the residence. Lioto acquiesced and, as aresult, defendant was left alone in the home for 15 to 20 minutes. Upon Lioto's return,defendant immediately left the premises.
Within one month of defendant's visit, Lioto began receiving insufficient fundsnotices from various merchants with respect to checks drawn on the long-closed KeyBank account. One such check was made payable to Kevin Payne, defendant's nephew,and was deposited into Payne's account at Oneida Savings Bank. Thebank—suspecting that the $1,800 check originated from a closed or counterfeitaccount—conducted an internal investigation and notified law enforcement.Thereafter, defendant was indicted and charged with criminal possession of a [*2]forged instrument in the second degree and criminalpossession of stolen property in the fifth degree. Following a jury trial, defendant wasconvicted as charged and sentenced to, among other things, 1
We affirm. Defendant initially contends that her convictions are not supported bylegally sufficient evidence—an argument premised, in large measure, upondefendant's assertion that she and Lioto were in cahoots with one another and, therefore,the check in question cannot be said to be either stolen or to constitute a forgedinstrument. Lioto's credibility, however, was fully explored at trial, and the juryconsidered and rejected defendant's theory of the crimes. As such, we discern no basisupon which to disturb the jury's credibility determination (see generally People v Wilson,100 AD3d 1045, 1046 [2012]; People v Weiss, 99 AD3d 1035, 1038 [2012], lvdenied 20 NY3d 1015 [2013]).
Turning to the specific elements of the underlying offenses, "[a] person is guilty ofcriminal possession of a forged instrument in the second degree when, with knowledgethat it is forged and with intent to defraud, deceive or injure another, he [or she] utters orpossesses any forged instrument of a kind specified in [Penal Law § 170.10]"(Penal Law § 170.25; seePeople v Muhammad, 16 NY3d 184, 187 [2011]), including a check (see People v Hold, 101 AD3d1692, 1692 [2012]). Similarly, and insofar as is relevant here, "[a] person is guilty ofcriminal possession of stolen property in the fifth degree when he [or she] knowinglypossesses stolen property, with intent to benefit himself [or herself] or a person otherthan an owner thereof" (Penal Law § 165.40). "Guilty knowledge of forgery maybe shown circumstantially by conduct and events" (People v Hold, 101 AD3d at1693 [internal quotation marks and citations omitted]; accord People v Silberzweig,58 AD3d 762, 762-763 [2009], lv denied 12 NY3d 920 [2009]), andevidence of an intent to defraud or deceive may be inferred from a defendant's actionsand surrounding circumstances (see People v Bickley, 99 AD3d 1113, 1113-1114 [2012],lv denied 20 NY3d 1009 [2013]; People v Monteiro, 93 AD3d 898, 899 [2012], lvdenied 19 NY3d 964 [2012]; see also People v Ford, 90 AD3d 1299, 1300 [2011], lvdenied 18 NY3d 994 [2012]).
Here, the testimonial and documentary evidence adduced at trial, which included anelectronic image of the check and a redacted copy of Payne's account history, establishedthat the check in question was drawn on Lioto's account, made payable to Payne anddeposited into Payne's account at Oneida Savings Bank.[FN1]Lioto testified, however, that she had not written any checks on the Key Bank account inyears—nor did she give anyone else permission to do so—and that thecheck did not bear her signature. Similarly, both Payne and Lioto testified that they didnot know one another and, further, that Lioto did not owe Payne any money. The actualdeposit—made at the bank's drive-through window—was captured on twosurveillance photographs admitted into evidence; Payne identified defendant in one ofthe photographs and identified his grandmother's car in the other. Such proof, coupledwith defendant's conduct while [*3]in Lioto's home andher subsequent actions with respect to Payne and his checking account,[FN2]is—when viewed in the light most favorable to the People—legallysufficient to sustain the underlying convictions.
Defendant's remaining contentions do not warrant extended discussion. To the extentthat defendant asserts that her trial was fundamentally unfair because the jury wasallowed to hear evidence of an uncharged crime—namely, that she forged Payne'sendorsement on the check at issue—we note that defendant did not object whenPayne was questioned on this point and, therefore, any challenge to such testimony is notpreserved for our review. Although defendant's related jury charge issues are preservedfor our review, we find that the charge as a whole, which followed the pattern juryinstruction, "correctly convey[ed] the proper standards for the jury to apply" (People v Marshall, 65 AD3d710, 713 [2009], lv denied 13 NY3d 940 [2010]; accord People v Rolfe, 83AD3d 1217, 1218-1219 [2011], lv denied 17 NY3d 809 [2011]). Finally, inlight of defendant's extensive criminal history, which included 21 prior convictions forwhat were predominantly larceny, forgery or stolen property offenses, we cannot say thatthe sentence imposed is harsh or excessive. Defendant's remaining arguments, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Stein, J.P., Spain and Garry, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1: Payne testified thatwhen defendant first asked for permission to deposit a check into his account, hedeclined. By the time Payne relented, defendant already had deposited the subject checkinto Payne's account.
Footnote 2: After defendantdeposited the check into Payne's account, she asked Payne to withdraw $500. Payneprocessed this transaction through the bank's ATM and thereafter gave the money and hisATM card to defendant, who also knew Payne's personal identification number.